SECOND SECTION

CASE OF SÄ°SLÄ°GÃœN v. TURKEY

(Application no. 23897/12)

JUDGMENT

STRASBOURG

14 December 2021

This judgment is final but it may be subject to editorial revision.

In the case of Sisligün v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Aleš Pejchal, President, Branko Lubarda, Pauliine Koskelo, judges, and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 23897/12) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 February 2012 by a Turkish national, Mr Ümit Sisligün, born in 1973 and living in Istanbul (“the applicant”) who was represented by Mr H.K. Elban, a lawyer practising in Antalya;

the decision to give notice of the complaints under Article 5 §§ 1 (c), 2, 3 and 4 and Articles 8 and 13 of the Convention to the Turkish Government (“the Government”), represented by their co-Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 23 November 2021,

Delivers the following judgment, which was adopted on that date:

SUBJECT-MATTER OF THE CASE

1. The applicant is a lawyer at the Istanbul Bar. The application mainly concerns the applicant’s arrest, and the search of his home and office, allegedly in the absence of any reasonable suspicion that he had committed an offence.

2. On 7 April 2010 the applicant visited his client H.A. detained at İmralı Prison, where four other convicts were serving their sentences, including Abdullah Öcalan, the former leader of the PKK (Workers’ Party of Kurdistan).

3. In 2011, the Istanbul Public Prosecutor’s Office launched an investigation in order to uncover the secret channels of communication between Abdullah Öcalan and the PKK/KCK, in particular those allegedly secured by lawyers.

4. On 22 November 2011 the applicant was taken into police custody at his home. On the same date, searches were conducted at his home and at the office that he shared with three other lawyers, based on a court order issued the previous day.

5. On 23 November 2011 the applicant’s lawyers lodged an objection against his arrest and detention. They argued, inter alia , that there was no reasonable suspicion for the applicant’s arrest. They also contested the validity and the allegedly wide scope of the search order.

6. On 25 November 2011 the applicant was questioned by the Istanbul public prosecutor, where he was accused of membership of the PKK/KCK on account of having met with Abdullah Öcalan at İmralı Prison and of transmitting his instructions to the illegal organisation. Denying these allegations, the applicant explained that he had visited İmralı Prison only once on 7 April 2011 for the sole purpose of meeting his client H.A., who was convicted of membership of another illegal armed organisation. Before the public prosecutor, the applicant’s lawyers stressed that the meetings conducted at İmralı Prison were strictly supervised and recorded and that, therefore, the accuracy of the applicant’s statements could be verified from the relevant records.

7. Later on the same date, the applicant was brought before the Istanbul Assize Court for questioning, where he repeated his earlier statements.

8. On 26 November 2011 the Istanbul Assize Court ordered the applicant’s release on the grounds of lack of sufficient evidence against him.

9. On 3 April 2012 the Istanbul public prosecutor’s office filed a bill of indictment against the applicant, along with some fifty individuals most of whom were lawyers, accusing him of membership of the PKK/KCK. According to the indictment, the technical surveillance conducted during the course of the investigation had revealed that on 7 April 2010 four lawyers, including the applicant, had met with Abdullah Öcalan at İmralı Prison, where they transmitted information to the latter regarding the organisation. Furthermore, these lawyers had prepared “meeting notes” following the meeting where they compiled, inter alia , the instructions of Abdullah Öcalan, which they then disseminated via e-mail to the high-ranking members of the organisation. The public prosecutor thereby accused the lawyers of having acted as couriers for the terrorist organisation.

10. According to the latest information in the case file, the criminal proceedings are still pending before the first-instance court.

THE COURT’S ASSESSMENT

11. As regards the Government’s plea on non-exhaustion of domestic remedies, the Court notes that the Government have not produced any judicial decisions to demonstrate that the compensation remedy under Article 141 of the CCP could provide an effective remedy for challenging the alleged lack of reasonable suspicion that an individual has committed an offence, in particular where the criminal proceedings were still pending (see, mutatis mutandis, Ahmet Hüsrev Altan v. Turkey , no. 13252/17, § 190, 13 April 2021). The Government’s objection must therefore be dismissed.

12. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other ground. It must therefore be declared admissible.

13. The general principles concerning the requirement of “reasonable suspicion” under Article 5 § 1 (c) have been summarised in Selahattin Demirtaş v. Turkey (no. 2) ([GC], no. 14305/17, §§ 311-321, 22 December 2020).

14. The applicant submitted that there had been no information available at the time of his arrest that could satisfy an objective observer that he had acted as a messenger between Abdullah Öcalan and the PKK as accused. He stressed that all meetings with Abdullah Öcalan were recorded by the prison administration and any notes taken by the lawyers during the meetings were reviewed afterwards.

15. The Government stated that as part of the investigation launched in his respect, the applicant had been subjected to a technical surveillance, which revealed that he had facilitated the PKK’s communication with Abdullah Öcalan through the notes that he had taken during his visit to İmralı Prison, and that this evidence had been clearly indicated in the indictment. There had therefore been a reasonable suspicion for his detention in police custody.

16. The Court notes from the Government’s observations that the “reasonable suspicion” held against the applicant was based on some surveillance data suggesting his involvement in the transmission of information to and from Abdullah Öcalan. However, the Government provide no information as to when the said data had been obtained; they only indicate that the relevant information had been included in the indictment, without arguing that it had been available to the authorities already at the time of the applicant’s arrest. In these circumstances, and based on the information available to it, the Court cannot but infer that the data in question had been obtained at later stages of the investigation and that there was no evidence at the time of the applicant’s arrest to suggest that the applicant’s visit to İmralı Prison on 7 April 2010 had involved anything more than an authorised meeting with his client H.A. The applicant’s argument regarding the lack of any reasonable suspicion against him to justify his detention in police custody remains, therefore, unrefuted (see, mutatis mutandis , İşçi and Others v. Turkey , no. 67483/12, § 45, 20 October 2020, and Alpergin and Others v. Turkey , no. 62018/12, § 49, 27 October 2020).

17. The Court reiterates that although the subsequent gathering of evidence in relation to a particular charge may sometimes reinforce a suspicion linking an applicant to the commission of terrorism-related offences, it cannot form the sole basis of a suspicion justifying his or her initial detention (see, to similar effect, Fox, Campbell and Hartley , cited above, § 35). In particular, the subsequent gathering of such evidence does not release the national authorities from their obligation to provide a sufficient factual basis that could justify a person’s initial detention (see Selahattin Demirtaş , cited above, § 321 and Alparslan Altan v. Turkey , no. 12778/17, § 139, 16 April 2019).

18. In the absence of any information by the Government capable of satisfying it that the applicant was reasonably suspected of having committed the alleged offence at the time of his arrest, the Court concludes that there has been a violation of Article 5 § 1 (c) of the Convention.

19. As regards the remaining complaints under Article 5 §§ 1, 2, 3 and 4 of the Convention, the Court has examined them and considers, in the light of all the material in its possession and its case-law, and in so far as the matters complained of are within its competence, that these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto (see, for instance, Paşa Bayraktar and Aydınkaya v. Turkey (dec.), no. 38337/12, §§ 24-31, 16 May 2017; Mustafa Avcı v. Turkey , no. 39322/12, §§ 58-67, 23 May 2017, and Mehmet Hasan Altan v. Turkey , no. 13237/17, §§ 98-102, 20 March 2018).

20. It follows that these complaints must be rejected in accordance with Article 35 § 4 of the Convention.

21. The applicant also complained under Article 8 that his home and law office had been unlawfully searched on the basis of a broad search warrant issued by a single judge despite the absence of any reasonable suspicion against him and under Article 13 that there had been no effective remedies in respect of his Article 8 complaints. Having regard to the facts of the case, the submissions of the parties, and its findings under Article 5 § (1) (c), the Court considers that it has examined the main legal question raised in the present application and that there is no need to give a separate ruling on the applicant’s remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

22. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage and EUR 4,318.13 in respect of legal costs incurred before the Court.

23. The Government contested the applicant’s claims as being excessive.

24. The Court awards the applicant EUR 3,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable to the applicant.

25. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 2,000 covering costs incurred before it, plus any tax that may be chargeable to the applicant.

26. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicant, within three months, the following amounts , to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 14 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Aleš Pejchal Deputy Registrar President